State v. Flogaus

Main, J. The defendants in this case were charged with criminal syndicalism, tried and convicted. From the judgment entered upon the verdict they appeal. All the questions, which are material to be considered, [519] presented by the record, are covered in the cases of the State v. Hennessy, 114 Wash. 351, 195 Pac. 211; State v. Hestings, ante p. 19, 196 Pac. 13, and State v. Hemhelter, ante p. 208, 196 Pac. 581. In the appellant’s brief, there is argued one question which is not covered by the cases cited, but this question is not presented by the record. It is claimed that the trial court erred’ in refusing to direct the subpoena to be issued for two witnesses desired by the defendant. The request for the issuance of the subpoena is made in the form of an affidavit which set out in part what it was claimed the witness would testify to. Apparently this affidavit was presented on the day the trial opened. There has been no statement of facts or bill of exceptions brought to this court. Without assembling the cases, there is a long line of decisions by this court holding that affidavits, to be a part of the record in this court, must be embodied either in a.statement of facts or a bill of exceptions. In this case the affidavit is brought here in the clerk’s transcript. In addition to this, the record fails to show the ruling of the trial court upon the question. The judgment will be affirmed. Parkeb, C. J., Mitchell, Tolman, and Mount, JJ., concur.